ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 August 2019 DOCKET NUMBER: AR20190007614 APPLICANT REQUESTS: reconsideration of his earlier request to upgrade his other than honorable conditions discharge to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number 75-3973 on 16 July 1975. 2. The applicant states, in effect, he believes his record should be corrected due to the circumstances surrounding his court-martial, and the manner in which he was represented during the discharge process. a. In August 1968, while participating in weapons training at Fort Bragg, NC, and as he held his rifle in an upright position, his friend, Private (PVT) M__, attempted to pull the weapon from him. The weapon discharged, and the bullet struck his friend in the head. The applicant tried to render first aid to save his friend's life, but his limited training, and the shock of what had happened caused him to be unsuccessful; his friend died. b. This was a very difficult time for him; he was devastated by the loss of his friend; however, it was all an accident and he never intended to hurt PVT M__. The applicant's leadership charged him with murder, but, based on the results of an investigation, the charges were subsequently reduced to negligent homicide. They placed the applicant in confinement; he was eventually released and sent home, but he never really understood what had happened. Because he was young, and had just killed his friend, he just wanted to go home. In the end, however, this was all an accident; now, at 69 years of age, he acknowledges he thinks about his friend every day; he wishes he could change the past. He recognizes the upgrade of his character of service will not change much; he just wants to know his intentions to serve this great nation were not labeled as anything other than honorable. 3. The applicant's service records show: a. Having obtained his father's written permission, he enlisted into the Regular Army on 16 November 1967 for a 3-year term; he was 17 years of age. After completing initial training, orders assigned him to Fort Bragg; he arrived on or about 14 May 1968. Effective 16 May 1968, the applicant's chain of command promoted him to private first class (PFC)/E-3. b. On 6 August 1968, he departed his Fort Bragg unit in an absent without leave status; he returned to military control on 20 August 1968 (an absence of 14 days). On 23 August 1968, the applicant was placed in confinement. c. On 15 November 1968, a general court-martial convicted him of negligently and unlawfully killing PFC M__ on 27 August 1968. The court sentenced him to confinement for 1 year, forfeiture of all pay and allowances for 1 year, and reduction to private/E-1. d. On or about 8 February 1969, while confined at the Post Stockade, the applicant left the stockade on the pretense of going to the employment section, which was located outside the stockade; he then went AWOL. The Post Stockade did not report the applicant's absence until 14 February 1969; he remained absent until on or about 7 March 1969 (a period of 21 days). On his return, the applicant was again placed in confinement. e. On 23 April 1969, the general court-martial convening authority approved the applicant's court-martial sentence and ordered the execution of all but the applicant's unserved confinement and any forfeitures that exceeded $73 per month for 12 months; his confinement and remaining forfeitures were suspended until 14 November 1969. On 25 April 1969, the applicant was released from the Post Stockade; on that same date, civilian authority arrested the applicant and charged him with larceny of an automobile. f. On 29 April 1969, civil authority confined him pending civilian charges for larceny; he remained confined until 6 May 1969. On 14 May 1969, after a brief return to Fort Bragg, the applicant was again confined by civil authority; civil authority released him on 16 May 1969. g. On 20 June 1969, the applicant went AWOL; he returned to military control on or about 21 June 1969 (1 day). h. Effective 3 July 1969, military authority once again placed the applicant in confinement. i. On 29 July 1969, a special court-martial convicted the applicant of willfully disobeying the lawful order of a superior commissioned officer; the court sentenced him to confinement for 6 months and forfeiture of $80 per month for 6 months. On 5 August 1969, the special court-martial convening authority approved the sentence and ordered its execution. j. Per a general court-martial order, dated 11 August 1969, the applicant's previously suspended confinement and forfeitures were vacated. k. On 20 August 1969, his Fort Bragg commander advised the applicant in writing of his intent to separate him under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). The commander listed the following reasons: * AWOL on three separate occasions * Unlawful killing of a fellow Soldier * Escaping confinement * Disobedience of a lawful command * Substandard performance and appearance l. At some point prior to 5 September 1969, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the separation action, his rights under the separation process, and the effects of waiving those rights. The applicant elected to waive his right and chose not to submit a statement in his own behalf. m. On 5 September 1969, a psychiatrist with the Fort Bragg Mental Hygiene Consultation Service, provided a psychiatric evaluation. The psychiatrist found the applicant met medical retention standards, but had an antisocial personality; he recommended separation under AR 635-212. n. Also on 5 September 1969, the commander forwarded his recommendation for the applicant's undesirable discharge under other than honorable conditions. On or about 6 October 1969, the separation authority approved the commander's recommendation and directed the applicant's discharge. o. On 17 October 1969, the applicant was separated with an undesirable discharge under other than honorable conditions. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 10 months and 11 days of his 3-year enlistment contract, with a total of 381 days of lost time (AWOL and confinement). The separation authority was AR 635-212 and the separation program number was 28B (Unfitness – Frequent Involvement in Incidents of a Discreditable Nature with Civil or Military Authorities). He was awarded or authorized the National Defense Service Medal and a Parachutist Badge. p. On 5 August 1970, he petitioned the Army Discharge Review Board (ADRB), requesting an upgraded character of service. He argued his unfitness discharge had harmed his civilian life because he was unable to get a well-paying job. On 26 July 1971, the ADRB found his discharge was proper and denied his request. q. On 29 March 1975, he applied to the ABCMR, requesting an upgrade to general under honorable conditions. (1) He disputed some entries regarding AWOL periods and the amount creditable active service, but he offered no supporting evidence; he also submitted arguments as to why the Board should favorably consider his request: (a) He asserted, while he and his father thought he was 17 years old when he enlisted, his birth certificate from Cuba revealed he was actually 16 (he submitted a translated copy of his birth certificate). He argued, at 16 years of age, and after accidently killing his best friend, he was not mature enough to handle his feelings of guilt and grief. (b) In February 1969, he walked out of the stockade with another Soldier; they went to Raleigh, NC. After 2 weeks, they turned themselves in to civilian authority. On his return to the stockade, the military guards beat him up; he suffered a laceration to his left eyebrow that required four stitches. (c) In August 1969, an officer brought him some papers pertaining his administrative discharge; the officer said if the applicant signed them, he could go home. The document showed a number of charges, but the only one that was valid was his escape from confinement. (d) He felt that receiving an undesirable discharge was too harsh, and the separation authority was likely prejudiced by an incident that occurred after his escape from confinement. He helped a friend push his stalled car; he later learned the car was stolen. Because they found his fingerprints on the car, the civilian authority confined him; the civilian court later determined he was not guilty. He contended the character of his service should not have been affected by any alleged civilian crime for which he was found innocent. (2) The applicant also provided five letters of support indicating he was a hardworking and upstanding member of his community who had not been in any trouble with law enforcement. (3) On 16 July 1975, the Board denied the applicant's request after determining there was insufficient evidence to indicate an error or injustice had occurred. 4 During the applicant's era of service, commanders were authorized to separate Soldiers with character and behavior disorders (now termed personality disorders) under AR 635-212, and using the regulatory provisions for either unsuitability or unfitness. Soldiers were separated for unsuitability when they showed a lack of adaptability due to the character and behavior disorder. For cases involving Soldiers whose behavioral conditions caused them to be involved frequent disciplinary actions, the commander could separate for unfitness. a. In December 1976, based on a law suit, the Army changed its policies with regard to personality disorder separations. Soldiers separated for unsuitability due to a personality disorder were required to be retroactively issued honorable discharges; cases where there were "clear and demonstrable reasons" why a fully honorable discharge should not be given were exempted. Conviction by a general court-martial or by more than one special court-martial was considered to be a "clear and demonstrable reason" that was sufficient to justify a less than fully honorable discharge. b. Under the change in policy, Soldiers with personality disorders who were separated for unfitness were not eligible for the upgrade to honorable. 5. The applicant argues there were extenuating circumstances surrounding his court- martial conviction; although he was convicted of killing his friend, his friend's death was accidental. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement to include a reference to an accidental death, his record of service, the frequency and nature of his misconduct, his confinement by civil authorities, the outcomes of his courts-martial, his anti-social personality assessment and the reason for his separation. The Board found insufficient evidence of mitigation to overcome the in-service misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-212, in effect at the time, set forth the basic authority for separating enlisted personnel for reasons of unfitness or unsuitability. Paragraph 6 (Applicability) stated an individual was subject to separation under the provisions of this regulation for unsuitability when they had a character and behavior disorder or displayed a lack of appropriate interest (apathy). Soldiers involved in frequent acts of a discreditable nature were separated for unfitness under this regulation. 3. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-9d (Honorable Discharge). An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. A Soldier's service could be characterized as honorable if he/she received at least "Good" for conduct, and at least "Fair" for efficiency. In addition, the Soldier could not have one general court-martial or more than one special court-martial conviction. b. Paragraph 1-9e (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. 4. Special Regulation 40-1025-2, in effect at the time, defined character and behavior disorders as those indicative of developmental defects or pathological trends in the personality structure, with minimal subjective anxiety, and little or no sense of distress. It stated further that, in most instances, the disorder was manifested by a lifelong pattern of action or behavior ("acting out") rather than by mental or emotional symptoms. The associated categories were: * pathological personality types – maladjustment of individuals as evidenced by lifelong abnormal behavior patterns * immaturity reactions – physically adult individuals who are unable to maintain their emotional equilibrium and independence when under minor or major stress * alcoholism – character disturbance due to alcohol abuse * addiction – includes cases where the use of drugs represent much deeper character disturbances where individuals engage in antisocial behavior, stealing, or sexual assault while under the influence of drugs * primary childhood behavior reactions – serious emotional difficulties within the child that are not due to organic defects where emotional displays are carried to an extreme degree 5. AR 635-200 (Personnel Separations – Enlisted Personnel) superseded AR 635-212 in November 1972. It was revised on 1 December 1976 following settlement of a civil suit. a. The revision required the type of discharge and the character of service to be determined solely by the individual's military records during the current enlistment. Further, any separation for unsuitability based on personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry. b. In connection with these changes, a DA memorandum, dated 14 January 1977, and better known as the "Brotzman Memorandum," was promulgated. It required retroactive application of revised policies, attitudes and changes in reviewing applications for discharge upgrades based on personality disorders. c. A second DA memorandum, dated 8 February 1978, and better known as the "Nelson Memorandum," expanded the review policy and specified that the presence of a personality disorder diagnosis would justify an upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given. Conviction by a general court-martial or by more than one special court-martial was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge. 6. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 7. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (BCM/NRs) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including Post Traumatic Stress Disorder (PTSD); Traumatic Brain Injury (TBI); sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 8. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. ABCMR Record of Proceedings (cont) AR20190007614 9 1